Commonwealth of Pennsylvania v. Ronald Burwell

Appeal from the Judgment of Sentence of April 29, 2009 in the Court of Common Pleas of Erie County, Criminal Division, Nos. CR-0000356-08, CP-25-CR-0003035-2008

The opinion of the court was delivered by: Lazarus, J.

J. S17038-10

BEFORE: PANELLA, ALLEN, and LAZARUS, JJ.

OPINION BY LAZARUS, J.:

This case is back to our Court for the third time after having been remanded for a proper Pa.R.A.P. 1925(a) trial court opinion and the filing of an advocate's brief.*fn1 Upon careful review, we affirm Burwell's judgment of sentence for aggravated assault.

Burwell struck his victim in the face and wrist with an electric guitar, causing the victim to suffer a broken wrist, cracked eye socket and resulting numbness on the left side of his face for two months following the incident. A jury convicted Burwell of aggravated assault and he was sentenced to a highend standard-range sentence*fn2 of 120-240 months' imprisonment (with credit for time served), with costs and restitution to the victim in the amount of $2,800 for lost wages.

In our last decision, this Court found that Burwell raised two non- frivolous issues: (1) whether the trial court's restitution order for the victim's lost wages was illegal, and (2) whether the trial court's remarks when instructing the jury on the crime of aggravated assault were reversible error.*fn3 Commonwealth v. Burwell, 42 A.3d 1077 (Pa. Super. 2012). We now have the benefit of a counseled brief on those issues, as well as an Appellee's brief and trial court opinion that address those claims.

Restitution for Lost Wages

Burwell claims that the trial court imposed an illegal sentence of restitution when it ordered him to pay the victim $2,800 in lost wages.*fn4

Questions regarding the court's authority with respect to ordering restitution implicate the legality of a sentence. Commonwealth v. Pleger, 934 A.2d 715 (Pa. Super. 2007). Challenges to the legality of a sentence are not waivable. Commonwealth v. Jacobs, 900 A.2d 368 (Pa. Super. 2006).*fn5 When a trial court imposes a sentence outside of the legal parameters prescribed by the applicable statute, the sentence is illegal and should be remanded for correction. Id.

The instant issue also involves statutory construction and is, therefore, purely a question of law; questions of law are subject to plenary and de novo review. Commonwealth v. Brown, 956 A.2d 992 (Pa. Super. 2008) (en banc). The Statutory Construction Act provides the object of interpretation and construction of statutes is to ascertain and effectuate the intention of the legislature. 1 Pa.C.S.A. § 1921(a). The General Assembly's intent is best expressed through the plain language of a statute. Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008).

Mandatory restitution as a part of a defendant's sentence is authorized by 18 Pa.C.S. § 1106. Section 1106 states, in relevant part: § 1106. Restitution for injuries to person or property.

(a) General rule. --Upon conviction for any crime . . . wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in ...

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